Roell v. Withrow, 538 U.S. 580, 14 (2003)

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Cite as: 538 U. S. 580 (2003)

Thomas, J., dissenting

The word "upon" is used to mean "thereafter" in other parts of the statute as well. For example, 636(h) provides that a "magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate judge . . . ." (Emphasis added.) Clearly, a retired magistrate judge cannot return to his former post before the chief judge consents. Similarly, 636(e)(3) uses the word "upon" to mean "subsequent to." That subsection grants magistrate judges the power to hold parties before them in contempt, but conditions the imposition of contempt sanctions "upon notice and hearing under the Federal Rules of Criminal Procedure." (Emphasis added.) That is, a party cannot be held in contempt without first being given notice and a hearing. Because under the normal rules of statutory construction the Court "assumes that identical words used in different parts of the same act are intended to have the same meaning," Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) (citations and internal quotation marks omitted), the word "upon" in 636(c)(1) must mean "thereafter," just as it does in 636(h) and (e)(3). By allowing consent to be "inferred from a party's conduct during litigation," ante, at 582 (emphasis added), the majority disregards the clear meaning of the word "upon."

Similarly, the conclusion that implied, rather than express, consent suffices is not borne out by either 636(c)(1) itself or the statutory scheme as a whole. The majority is, of course, correct that the relevant clause of 636(c)(1) speaks only of "consent," while the clause addressing part-time magistrate judges requires that consent be communicated by a "specific written request." Ante, at 587 (internal quotation marks omitted). But this premise does not command the conclusion the majority draws. Both clauses require express consent, with the latter mandating a specific form of express consent—a written request.


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